Theoretical Research On Civil Burden Of Proof

The rule of evidence is the soul of the civil procedure system,and it is the key to connecting the facts and the law.To some extent,civil action is to use the available evidence to restore the whole or part of the facts,until the judge can make sure of the legal relationship in fact,and draw the corresponding conclusion.The acquisition of evidence,in addition to the investigation by the court,depends on the litigant's proof of proof.Due to the characteristics of neutrality in civil litigation,from the perspective of finding facts,the parties should actively carry out the proof.Therefore,the basic principle of "who advocates who gives evidence" is decided in law.The sixty-fourth article of the Civil Procedure Law of China stipulates that "the party's claim to itself is responsible for providing evidence." The ninetieth provision of the judicial interpretation of Civil Procedure Law stipulates: "the parties should provide evidence for the fact that the party claims the facts based on their claims,or refute the facts on the other party's claims,unless otherwise provided by law.Before a judgment is made,if the party fails to provide evidence or evidence is not enough to prove his factual opinion,the party who bears the burden of proof shall bear the adverse consequences.Although the burden of proof in civil procedure law provisions are relatively simple,but in judicial practice,the rules are very complex.From the view of the legislative system,the existing laws and regulations and judicial interpretations of the burden of proof in our country are confused,and there are some conflicting places.From a legal point of view,the lack of specific operational rules and unified judgment standard,the judge rules of evidence is vague and can not be accurately applied,even caused the different co contracting phenomenon.The reasons for the analysis include the following three aspects: first,the rules of the distribution of the burden of proof are not clear;two,the burden of proof is applied;when the referee lacks enough indication,the three is that judges are seldom willing to take the initiative to adopt the rule of onus probandi.This dilemma is inseparable from the shortcomings of our current burden of proof theory,legislation and judicial practice.It also reflects the shortcomings of our judicial environment and the lack of rule of law culture.Understanding of the burden of proof should not be limited in the theoretical controversy,should start from the essence of the burden of proof,based on logical thinking,rational thinking,in accordance with the "Judicial Fact-proof behavior-the burden of proof" the order of the burden of proof theory and knowledge,analyzes the causes of various theoretical problems in order to achieve the necessary supplement and correction of the burden of proof.Our current burden of proof is not perfect enough.There are still many shortcomings.In the whole process of litigation,the evidence is collected,the evidence is reviewed,until the evidence is judged,which is dominated by the judges.This aspect leads to more and more conflicts in court cases,less personnel,less strength and heavy tasks.No matter how busy the judges are,the number of cases is increasing.On the one hand,it also encourages the inflexibility of the litigants to provide proof materials,and encourages the dependence on the collection and certification materials of the court.Therefore,further improving the legal system of the burden of proof and its application has become an important topic that must be solved urgently.On the basis of the results of the specific research and analysis,this article will put forward some suggestions to improve the legal system of the burden of proof.